Tap Root Dairy responsible for fecal discharge into French Broad River in December 2012

Published: Friday, December 13, 2013 at 6:47 p.m.

Last Modified: Friday, December 13, 2013 at 6:47 p.m.

A Fletcher dairy farm and one of its owners pleaded guilty in federal court Friday to criminal violations of the Clean Water Act, according to a news release from the U.S. attorney for the Western District of North Carolina.

A criminal bill of information filed in U.S. District Court on Nov. 11 charged Tap Root Dairy, LLC, and William “Billy” Franklin Johnston, 60, of Mills River with one count of violation of the Clean Water Act in connection with the discharge of cow feces into the French Broad River in December 2012.

According to documents filed and statements made in court, Tap Root is one of the state's largest dairies, maintaining several hundred cows and managing hundreds of acres of crops in Fletcher. In the annual course of its operations, Tap Root collects and recycles millions of pounds of solid and liquid animal waste, which are considered pollutants under the Clean Water Act.

Pete Anderson, a former federal prosecutor practicing in Asheville, Charlotte and Washington, D.C., who represents Johnston and Tap Root, said the business is permitted to recycle its animal waste through a containment and irrigation system, which was upgraded in the late 1980s.

Anderson said that the dairy spent hundreds of thousands of dollars to upgrade its system, installing two containment ponds, which collect, separate and prepare waste to be reapplied as fertilizer to the farm's crop fields.

“During operations, liquid and solid animal waste is moved by tractor from the feeding areas into a temporary holding area, called a 'separator,' which separates the solid waste from liquid waste,” according to the bill. “The waste then travels to a primary waste storage lagoon, where solids are supposed to settle, and liquid waste gravity flows through a pipe to a secondary waste storage lagoon.

“High levels of fecal coliform bacteria exist in dairy cow waste. The liquid waste in the secondary waste storage lagoon is permitted to be land-applied on the adjacent crop fields with irrigation equipment. As part of routine maintenance, accumulated solids can be removed from the primary and secondary storage lagoons. The solids can also be land-applied into the permitted crop fields.”

Without regular maintenance, the lagoons can back up, jeopardizing regulated “freeboard” levels used to insure containment and avoid overflows. The primary storage pond can hold a little over a million gallons. The secondary lagoon can hold up to 2,543,200 gallons and “is sufficient to store all liquid waste, contaminated runoff and rainfall for a period of 90 days,” according to the bill. “Tap Root Dairy failed to check and maintain freeboard levels in the secondary lagoon for 93 days.”

In the thick of the company's busy harvest last fall, while workers were distracted with business obligations, Anderson said the waste “spilled over the top” on Dec. 4, 2012, and entered a creek about 200 yards away.

“They immediately cooperated with authorities the minute they were aware of it,” Anderson said, adding that the spill was stopped in about 45 minutes.

There have been no problems reported since the incident, he said.

However, the spill resulted in the discharge of 11,000 gallons cow feces and other waste into the French Broad River, according to the news release from U.S. Attorney Anne M. Tompkins' office.

Fishermen stumbled upon the drainage and notified French Broad Riverkeeper Hartwell Carson, who called state Division of Water Quality officials. They piled dirt onto the river bank to block the leakage and irrigated the waste onto designated land to lower the pond level.

In addition to pleading guilty to violating the Clean Water Act, Tap Root also agreed to pay a fine of $80,000, which will be directed to entities that safeguard the French Broad River and other environmental concerns in the Southeast; to abandon any appeal to a related $13,507.82 North Carolina State civil penalty; to serve a probationary term of four years during which regulators and investigators can inspect the dairy's records and facilities without notice and without a warrant; and to design and implement a compliance plan subject to approval by the EPA.

Anderson said that the charges are misdemeanor violations. He noted that his clients are “glad they were able to resolve this unfortunate negligent event without a trial. The dairy has taken all steps to correct the problems that led to this release.”

Anderson said sentencing before a U.S. magistrate will likely take place in five to six months, though no date has been set.

At sentencing, Johnston faces a maximum prison term of one year and has agreed to pay an additional fine of $15,000, according to the news release.

The French Broad River supplies drinking water to more than one million people and is frequently used for recreational water activities, such as swimming and kayaking.

In 2012, North Carolina listed the French Broad River from Mud Creek to N.C. Highway 146 as impaired for fecal coliform bacteria, according to the release. Tap Root is located on this impaired section of the French Broad River.

The farm has had previous violations from 2006 to 2010, including failure to maintain an operator's certification, failure to provide records, failure to renew a permit and failure to collect soil analyses and waste analyses.

In 2007 and 2008, Johnston was cited for the discharge of silage leachate to a wetland area adjacent to the French Broad River. Silage leachate can significantly impact the river by robbing the water of dissolved oxygen.

The investigation of this case was conducted by special agents of the EPA's Criminal Investigation Division, and the State Bureau of Investigation's Diversion and Environmental Crimes Unit. The prosecution is being handled by Assistant United States Attorney Steven R. Kaufman of the U.S. Attorney's Office in Charlotte.

<p>A Fletcher dairy farm and one of its owners pleaded guilty in federal court Friday to criminal violations of the Clean Water Act, according to a news release from the U.S. attorney for the Western District of North Carolina.</p><p>A criminal bill of information filed in U.S. District Court on Nov. 11 charged Tap Root Dairy, LLC, and William “Billy” Franklin Johnston, 60, of Mills River with one count of violation of the Clean Water Act in connection with the discharge of cow feces into the French Broad River in December 2012. </p><p>According to documents filed and statements made in court, Tap Root is one of the state's largest dairies, maintaining several hundred cows and managing hundreds of acres of crops in Fletcher. In the annual course of its operations, Tap Root collects and recycles millions of pounds of solid and liquid animal waste, which are considered pollutants under the Clean Water Act. </p><p>Pete Anderson, a former federal prosecutor practicing in Asheville, Charlotte and Washington, D.C., who represents Johnston and Tap Root, said the business is permitted to recycle its animal waste through a containment and irrigation system, which was upgraded in the late 1980s.</p><p>Anderson said that the dairy spent hundreds of thousands of dollars to upgrade its system, installing two containment ponds, which collect, separate and prepare waste to be reapplied as fertilizer to the farm's crop fields.</p><p>“During operations, liquid and solid animal waste is moved by tractor from the feeding areas into a temporary holding area, called a 'separator,' which separates the solid waste from liquid waste,” according to the bill. “The waste then travels to a primary waste storage lagoon, where solids are supposed to settle, and liquid waste gravity flows through a pipe to a secondary waste storage lagoon.</p><p>“High levels of fecal coliform bacteria exist in dairy cow waste. The liquid waste in the secondary waste storage lagoon is permitted to be land-applied on the adjacent crop fields with irrigation equipment. As part of routine maintenance, accumulated solids can be removed from the primary and secondary storage lagoons. The solids can also be land-applied into the permitted crop fields.”</p><p>Without regular maintenance, the lagoons can back up, jeopardizing regulated “freeboard” levels used to insure containment and avoid overflows. The primary storage pond can hold a little over a million gallons. The secondary lagoon can hold up to 2,543,200 gallons and “is sufficient to store all liquid waste, contaminated runoff and rainfall for a period of 90 days,” according to the bill. “Tap Root Dairy failed to check and maintain freeboard levels in the secondary lagoon for 93 days.”</p><p>In the thick of the company's busy harvest last fall, while workers were distracted with business obligations, Anderson said the waste “spilled over the top” on Dec. 4, 2012, and entered a creek about 200 yards away. </p><p>“They immediately cooperated with authorities the minute they were aware of it,” Anderson said, adding that the spill was stopped in about 45 minutes. </p><p>There have been no problems reported since the incident, he said.</p><p>However, the spill resulted in the discharge of 11,000 gallons cow feces and other waste into the French Broad River, according to the news release from U.S. Attorney Anne M. Tompkins' office.</p><p>Fishermen stumbled upon the drainage and notified French Broad Riverkeeper Hartwell Carson, who called state Division of Water Quality officials. They piled dirt onto the river bank to block the leakage and irrigated the waste onto designated land to lower the pond level.</p><p>In addition to pleading guilty to violating the Clean Water Act, Tap Root also agreed to pay a fine of $80,000, which will be directed to entities that safeguard the French Broad River and other environmental concerns in the Southeast; to abandon any appeal to a related $13,507.82 North Carolina State civil penalty; to serve a probationary term of four years during which regulators and investigators can inspect the dairy's records and facilities without notice and without a warrant; and to design and implement a compliance plan subject to approval by the EPA. </p><p>Anderson said that the charges are misdemeanor violations. He noted that his clients are “glad they were able to resolve this unfortunate negligent event without a trial. The dairy has taken all steps to correct the problems that led to this release.”</p><p>Anderson said sentencing before a U.S. magistrate will likely take place in five to six months, though no date has been set.</p><p>At sentencing, Johnston faces a maximum prison term of one year and has agreed to pay an additional fine of $15,000, according to the news release.</p><p>The French Broad River supplies drinking water to more than one million people and is frequently used for recreational water activities, such as swimming and kayaking. </p><p>In 2012, North Carolina listed the French Broad River from Mud Creek to N.C. Highway 146 as impaired for fecal coliform bacteria, according to the release. Tap Root is located on this impaired section of the French Broad River. </p><p>The farm has had previous violations from 2006 to 2010, including failure to maintain an operator's certification, failure to provide records, failure to renew a permit and failure to collect soil analyses and waste analyses. </p><p>In 2007 and 2008, Johnston was cited for the discharge of silage leachate to a wetland area adjacent to the French Broad River. Silage leachate can significantly impact the river by robbing the water of dissolved oxygen.</p><p>The investigation of this case was conducted by special agents of the EPA's Criminal Investigation Division, and the State Bureau of Investigation's Diversion and Environmental Crimes Unit. The prosecution is being handled by Assistant United States Attorney Steven R. Kaufman of the U.S. Attorney's Office in Charlotte.</p>